HR Must Be Diligent When It Comes to Verifying Employees

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In th​e fall of 2008, 21-year-old Jennifer Lee Hampton went to Knoxville, Tenn., to train new employees at an area restaurant. She checked in to a Days Inn hotel.

She never checked out.

Hampton was murdered by an employee who opened her door with a master key. In 2009, her parents sued the hotel, which settled. Cost to Days Inn: $10 million.

The lawsuit Hampton’s family filed alleged that in addition to failing to exercise security over its master keys, the hotel failed to do adequate background checks on the man charged with first-degree murder in her death.

“At the end of the day, this person had very serious violent crime convictions—the kind of convictions where you would not want this person to have access to all of the rooms in the hotel,” Julie Myers Wood, president of Immigration & Customs Solutions in Arlington, Va., said as she recounted the case during a session on employee verification at the Society for Human Resource Management’s Employment Law & Legislative Conference March 18, 2010, in Washington, D.C.

Officials say that the man thwarted the background check through identity theft—a growing problem for U.S. employers.

Said Wood: “Almost 200,000 employers are on E-Verify,” the federal government’s free web-based employee verification system, which compares employee information taken from the Form I-9 against more than 449 million records in the Social Security Administration’s database and more than 80 million records in the Department of Homeland Security’s (DHS) databases.

“Criminals know this,” said Wood, former assistant secretary of homeland security at DHS. “The only way to bypass it is to use someone else’s ID.”

HR’s Dilemma

What can HR do? The first step is to simply be aware.

“There is a core principle of employment eligibility. Know who your employees are exactly,” Wood said. “Are they authorized to work in the United States? Are they who they say they are? Do they have a criminal background or other issues? These are things to think about. What are the best tools available, pre-hire, post-hire, and additional tools you can use at various stages?”

First, she said, avoid surprises.

“You can take some basic steps to make sure [applicants] are not overly inflating or misrepresenting their qualifications.” She said people who lie usually do so about three things in general: their address, having a degree or employment dates.

“People might want to cover up an unfortunate job that didn’t work out or period of unemployment,” she said.

What else? “Be diligent in the I-9 process. That can help root out people who are pretending to be someone else.”

Some basic tips:

Copy and keep supporting documentation.

Check I-9 documents for basic errors—so if U.S. Immigration and Customs Enforcement (ICE) performs an audit “you’ll have the documents on hand. As an attorney defending employees, we’ve had much greater success if a company keeps their supporting documentation.”

Provide regular training on what to look for, but avoid playing “document detective.”

Provide a second-level review of the I-9. “Have another set of eyes look at it,” she said. “It’s much better to catch the error at the beginning of someone’s employment” than later on in the process.

Connect the dots when using the I-9s.

“Make sure applications aren’t incomplete,” she said. “Make sure they fill out all the information.”

Pay attention to where Social Security cards were issued and note if a lot of applicants seem to have numbers coming from the same place. The groupings of the digits in the Social Security numbers identify geographic regions and other details. “The Social Security Administration’s web site can tell you what the numbers mean,” she said.

Check to see if the applicant has a new ID from another state.

Be a Wary Employer

“Always have a set number of questions that are always asked the same way. What you don’t want to do is drive away legitimately authorized workers,” Wood said.

The government doesn’t want you to do that either.

As
SHRM Onlinereported recently, on March 17, 2010, DHS Secretary Janet Napolitano announced that the U.S. Justice Department's Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) and the U.S. Citizenship and Immigration Services (USCIS) have agreed to share information relating to possible misuse of E-Verify by employers.

But a recent report from a research firm DHS hired to evaluate E-Verify revealed that it works only about half of the time—mainly because it cannot detect identity theft.

The government is working to improve it, however, through the use of biometrics.

USCIS Director Alejandro Mayorkas told legislators at a House appropriations subcommittee hearing on homeland security on March 16, 2010, that “we are working hard to improve E-Verify’s ability to detect identity fraud. USCIS has already added DHS-issued photos to the system for allowing for a biometric comparison for authorized [foreign] workers and we are in the process of adding passport photos to E-Verify’s photo tool.

“We are developing tools that will allow workers to lock their own Social Security number in E-Verify until they are changing jobs,” he said.

And although Wood said she believed that “the prognosis for immigration reform is not good for [2010] because of the focus on health care reform and the 2010 midterm elections,” President Barack Obama issued a statement on March 18, 2010, saying he was pleased with the bipartisan framework that Sens. Charles Schumer, D-N.Y., and Lindsey Graham, R-S.C., presented to him that would require a biometric identity card for everyone who is authorized to work in the United States.

“It thoughtfully addresses the need to shore up our borders and demands accountability from both workers who are here illegally and employers who game the system,” Obama stated in a release on the White House’s web site.

“My administration will be consulting further with the senators on the details of their proposal, but a critical next step will be to translate their framework into a legislative proposal and for Congress to act at the earliest possible opportunity,” Obama said.

Wood said, “Gathering the support Obama would need before the midterms is going to be kind of dicey. We could see it in the lame duck session or we could see it over the next couple of years.

“Where does that leave HR personnel?” Wood asked. “Not in great shape. It’s likely you will have more—not less—confusing rules as you try to sort out the employment verification process.”

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.